Citation Nr: 0033066
Decision Date: 12/19/00 Archive Date: 12/28/00
DOCKET NO. 99-02 927 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for degenerative disc
disease of the cervical spine, secondary to the service-
connected residuals of a gunshot wound of the left shoulder.
2. Entitlement to service connection for degenerative
arthritis of the acromioclavicular joint with probable
rotator cuff disease, secondary to the service-connected
residuals of a gunshot wound of the left shoulder.
3. Entitlement to an increased rating for residuals of a
gunshot wound of the left shoulder, currently evaluated as 30
percent disabling.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESSES AT HEARINGS ON APPEAL
Appellant and M. D.
ATTORNEY FOR THE BOARD
T. S. Tierney, Counsel
INTRODUCTION
The veteran served on active duty from November 1943 to
October 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California. The veteran and M. D. testified at
a personal hearing before a hearing officer at the RO in May
1999. In addition, the veteran testified at a
videoconference hearing before the undersigned veterans law
judge in August 2000.
At the videoconference hearing during the pendency of this
appeal, additional issues were raised for service connection
for degenerative disc disease of the cervical spine and
degenerative arthritis of the acromioclavicular joint with
probable rotator cuff disease as directly due to service.
Also, the additional issue was raised for service connection
for post-traumatic stress disorder. These issues have not
been adjudicated and are referred to the RO for the
appropriate action.
FINDINGS OF FACT
1. The veteran's left upper extremity is his minor or non-
dominant hand.
2. The service-connected residuals of a gunshot wound to the
left shoulder are manifested by severe disability to Muscle
Group III.
CONCLUSIONS OF LAW
The criteria for a disability rating higher than 30 percent
for residuals of a gunshot wound of the left shoulder are not
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.47, 4.49-4.56, Diagnostic Code 5303 (1996); 38 C.F.R.
§§ 4.40, 4.45, 4.55, 4.56 4.59, 4.73, Diagnostic Code 5303
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Increased Rating for Left Shoulder Gunshot Wound Residuals
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity in civil occupations. 38 U.S.C.A. § 1155
(West 1991). Separate diagnostic codes identify the various
disabilities. In the determining the rating to be assigned
for a particular service-connected disability, the entire
recorded history, including the medical and industrial
history, together with the report of the most current rating
examination is review as a whole, and then compared to the
criteria set forth in the VA Schedule for Rating
Disabilities. 38 C.F.R. Part 4 (1999). The Board must
basically attempt to determine the extent to which a service-
connected disability adversely affects the veteran's ability
to function under the ordinary conditions of daily life,
including employment. 38 C.F.R. §§ 4.2, 4.10 (1999).
Handedness for the purpose of a dominant rating will be
determined by the evidence of record, or by testing on VA
examination. Only one hand shall be considered dominant. 38
C.F.R. § 4.69 (1999). The veteran has been shown by the
record to be right handed. Thus, his service-connected left
shoulder disability impacts his nondominant or minor upper
extremity.
The veteran's left shoulder disability involves damage to
Muscle Group III, which involves the intrinsic muscles of the
shoulder girdle: the pectoralis major I (clavicular) and the
deltoid. The functions of Muscle Group III include elevation
and abduction of the arm to shoulder level, and acting with
muscles of Group II in forward and backward swinging of the
arm. In rating a disability involving Muscle Group III of
the nondominant shoulder, a maximum 30 percent rating is
warranted for severe injury. See 38 C.F.R. § 4.73,
Diagnostic Code 5303.
Some of the regulations pertaining to muscle injuries were
revised, effective July 3, 1997, during the pendency of this
appeal. See 62 Fed. Reg. 30235-30240 (1997). In particular,
certain regulations which provide guidance as to assessing
the severity of muscle injuries were revised. Where the law
or regulations change after a claim has been filed or
reopened but before the administrative or judicial review
process has been concluded, the version most favorable to the
claimant applies, absent congressional intent to the
contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313
(1991). The Board further notes, however, that the criteria
provided in Diagnostic Code 5303 for evaluation of injury to
Muscle Group III are essentially the same under both the old
and new regulations.
When assigning a disability rating, it is necessary to
consider functional loss due to flare-ups, fatigability,
incoordination, and pain on movements. DeLuca v. Brown, 8
Vet. App. 202, 206-7 (1995). The rating for an orthopedic
disorder should reflect functional limitation which is due to
pain which is supported by adequate pathology and evidenced
by the visible behavior of the claimant undertaking the
motion. 38 C.F.R. § 4.40 (1999). The factors of disability
reside in reductions of their normal excursion of movements
in different planes. Instability of station, disturbance of
locomotion, and interference with sitting, standing, and
weight bearing are related considerations. 38 C.F.R. § 4.45
(1999). It is the intention of the rating schedule to
recognize actually painful, unstable, or malaligned joints,
due to healed injury, as entitled to at least the minimal
compensable rating for the joint. 38 C.F.R. § 4.59 (1999).
The Board has considered the full history of the veteran's
muscle injury. The service medical records show that he
received a through-and-through gunshot wound from a 30-
caliber machine gun to the left shoulder which penetrated the
deltoid muscle. In rating decision of November 1945, a 30
percent rating was assigned for this injury, effective from
October 1945. A 30 percent rating has remained in effect
since then and is protected because there is no evidence that
such a rating was based on fraud. See 38 C.F.R. § 3.951
(1999).
The x-ray in February 1997 revealed mild arthritis of the
left shoulder. A MRI in May 1997 showed tendinitis of the
left supraspinatus tendon with no evidence of a tear and
sclerotic changes in the greater tuberosity of the left
humerus. The x-ray in October 1997 showed mild degenerative
arthritis of the left acromioclavicular joint.
At a VA examination in February 1998, the veteran reported
that his shoulder and neck had deteriorated, with severe pain
and less movement of his arm. In was noted that the veteran
was right-handed. There was intact pinprick sensation in
both upper extremities. Muscle testing showed minimal
weakness of the left shoulder. There were two wounds on the
left shoulder, one anterior and one posterior lateral, at the
level of the humeral neck. There was normal nerve function.
On palpation, the veteran complained of tenderness of the
acromioclavicular joint and above the greater tuberosity.
The range of motion of the left shoulder was 90 degrees
forward elevation, 90 degrees abduction, 60 degrees internal
rotation, and 80 degrees external rotation. There was
crepitation of the shoulder with rotation. X-ray reports
from 1997 were reviewed. The diagnoses were degenerative
disc disease of the cervical spine at C5-6 with possible left
arm reticulitis, degenerative arthritis of the
acromioclavicular joint of the left shoulder, and rule out
torn rotator cuff or degenerative changes of the rotator cuff
of the left shoulder.
At a personal hearing before a hearing officer at the RO in
May 1999, the veteran testified that when he suffered a
gunshot wound to the left shoulder in April 1945, the rotator
cuff was also affected by the injury. According to the
veteran, his condition had deteriorated over the years. He
testified that he could not move his arm like he used to and
that the pain had traveled down to his elbow and he
experienced tingling sensations to his fingers. He was
taking pain medication for the left shoulder disability. He
stated that his rotator cuff problem prevented him from
raising his arm without pain, and that he could not reach his
arm up above his shoulder. The veteran testified that he was
right-handed. The veteran also testified that when the
bullet struck him, it also injured his neck. The veteran
wore a brace at night on his upper left extremity to keep his
left wrist straight. He stated that he had had no injury to
his left shoulder or neck since service. The veteran's wife
indicated that he had pain in his left shoulder at night and
moaned, waking her up.
The veteran testified again at a videoconference hearing
before the undersigned Veterans Law Judge in August 2000. He
testified that he could not live or move things with his left
arm. He also stated that he was unable to grasp things and
wore a brace on his hand, which the VA doctors had given him
about seven years earlier. The veteran testified that he had
pain in the arm and could not sleep. He indicated that he
was taking pain medications, which had recently been
increased. He stated that he could not lift his arm over his
shoulder height and that he did everything with his right
arm. According to the veteran, he was an upholsterer before
retiring and he could still work if it was not for the pain
in his arm. The veteran testified that he had had pain in
his left shoulder ever since the injury in 1945.
After a careful review of the evidence of record, the Board
finds that an increased evaluation for the left shoulder
disability is not warranted. The veteran is currently
receiving the maximum amount provided by the Rating Schedule
for damage to Muscle Group III of the nondominant shoulder
and an increased schedular evaluation is not available under
Diagnostic Code 5303.
In addition, a rating in excess of 30 percent for the left
shoulder disability is not warranted under any other
diagnostic code. The February 1998 VA examination report
shows that range of motion of the left shoulder included
abduction to 90 degrees. Accordingly, the evidence does not
show that a 40 percent rating is warranted under Diagnostic
Code 5200 because the evidence does not show unfavorable
ankylosis of scapulohumeral articulation with abduction
limited to 25 degrees from the side.
Additionally, the evidence does not show impairment of the
left humerus involving fibrous union, nonunion, or loss of
the head of the humerus. Accordingly, a rating in excess of
30 percent for the left shoulder disability is not warranted
under Diagnostic Code 5202.
At the May 1999 hearing, the veteran indicated that his left
shoulder disability had deteriorated over the years in that
he could no longer move his arm as much as before, and the
pain had become more severe. However, there is no basis for
a rating in excess of 30 percent based on limitation of
motion due to pain or functional loss under the criteria of
38 C.F.R. §§ 4.40, 4.45, or 4.59. This is so because the
veteran is presently receiving a rating which is the
equivalent of the maximum schedular rating for limitation of
motion of the arm under 38 C.F.R. § 4.71, Diagnostic Code
5201 (1999). See Johnston v. Brown, 10 Vet. App. 80 (1997).
Additionally, the Board is required to address the issue of
entitlement to an extraschedular rating under 38 C.F.R. §
3.321 in cases where the issue is expressly raised by the
claimant or the record before the Board contains evidence of
"exceptional or unusual" circumstances indicating that the
rating schedule may be inadequate to compensate for the
average impairment of earning capacity due to the disability.
See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this
case, the veteran stated at the August 2000 videoconference
hearing that he could still work if it was not for the pain
in his arm. Accordingly, consideration of an extraschedular
rating has been expressly raised. However, the record before
the Board does not contain evidence of "exceptional or
unusual" circumstances that would preclude the use of the
regular Rating Schedule. The evidence shows that the veteran
retired from working as an upholsterer in 1990 at the age of
65. There is no evidence that he could no longer work at
that time due to his left shoulder disability. Accordingly,
there is no evidence of marked interference with employment.
Moreover, there is no evidence of frequent periods of
hospitalization due to the left shoulder disability as to
render impractical the application of the regular schedular
standards.
ORDER
An increased rating for residuals of a gunshot wound of the
left shoulder is denied.
REMAND
A VA examination report dated in October 1997 provides a
medical opinion indicating that the veteran also injured his
neck and back when he was shot in the shoulder in service in
1945. In addition, another VA examination report dated in
February 1998 provides a medical opinion that the veteran's
degenerative disc disease of the cervical spine at C5-6 could
be a consequence of the injury in service, at that time.
The Board finds that additional development is necessary in
regard to the issue of entitlement to service connection for
degenerative arthritis of the acromioclavicular joint with
rotator cuff disease, secondary to the service-connected
gunshot wound of the left shoulder.
The veteran noted on the February 1998 VA examination report
that he had been treated at the VA Hospital in Long Beach for
his shoulder and arm from 1946 to 1998, and for his neck in
February 1998. The evidence of record contains VA treatment
records dated in September 1953, July 1974, and sporadic
records of treatment from July 1995 to December 1998. The
Board notes that some of the requests for VA treatment
records noted an incorrect claim number, with the last number
a 2 instead of a 5. Another request should be made for all
of the veteran's VA treatment records, from 1946 to the
present, noting the correct claim number.
The Board finds that another VA examination of the veteran's
neck disorder is necessary, to include a medical opinion
whether the service-connected left shoulder disability
aggravates the neck disorder. See Allen v. Brown, 7 Vet.
App. 439 (1995).
Accordingly, the case is remanded to the RO for the following
action:
1. The RO should contact the veteran and
request that he provide the names,
addresses, and approximate dates of
treatment for all health care providers,
VA or private, inpatient or outpatient,
who may possess additional records of
treatment pertinent to the claims being
remanded. After securing any necessary
authorization from the veteran, the RO
should attempt to obtain copies of the
treatment records.
2. Then, the RO should make arrangements
for the veteran to have an examination of
his cervical spine disorder and
acromioclavicular joint disorder. The
veteran's claims file and a copy of this
remand should be made available to the
examiner to review. The examiner is
requested to note on the examination
report whether such records were
reviewed. All pertinent tests and
studies should be completed, and the
results associated with the examination
report. The examiner is requested to
provide a medical opinion as to whether
there is any medical nexus between any
current cervical spine disorder and the
gunshot wound of the left shoulder. In
addition, the examiner is requested to
provide a medical opinion as to whether
the residuals of the gunshot wound of the
left shoulder aggravate any cervical
spine disorder. The examiner is also
requested to provide an opinion as to the
etiology of the disorder involving the
acromioclavicular joint and whether the
residuals of the gunshot wound of the
left shoulder have caused or aggravated
arthritis of the acromioclavicular joint
or caused or aggravated any left rotator
cuff disability.
3. Following completion of the above,
the RO should review the claims file to
ensure that all of the foregoing
requested development has been completed.
4. After undertaking any development
deemed appropriate in addition to that
requested above, the RO should
readjudicate the issues on appeal, to
include consideration of service
connection based on aggravation of a
nonservice-connected disorder by a
service-connected disability under Allen.
If the benefits sought on appeal remain denied, the veteran
and his representative should be furnished a supplemental
statement of the case with regard to the additional
development and afforded the opportunity to respond. The
veteran has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter,
the case should be returned to the Board for further
appellate consideration, if in order.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
Supp. 2000) (Historical and Statutory Notes). In addition,
VBA's Adjudication Procedure Manual, M21-1, Part IV, directs
the ROs to provide expeditious handling of all cases that
have been remanded by the Board and the Court. See M21-1,
Part IV, paras. 8.44-8.45 and 38.02-38.03.
John E. Ormond, Jr.
Veterans Law Judge
Board of Veterans' Appeals